HR Case II Answers

Following on from my previous post, the recommended course of action is:

1. Remind the employee that he must refrain from all involvement in politics in countries where he has no civil rights and the company is operating.

2. Reiterate that respect for human rights, including freedom of expression, is a fundamental company commitment.

3. Draw the employee’s attention to the fact that he may be perceived from outside as a company spokesman.

Ultimately, the company has signed up to international labour codes which respect freedom of expression. This is why they can’t just rush in and sack someone who has published something which the middle management don’t like or find inconvenient, e.g. a blog post which doesn’t mention the company name. As I said, it’s a large multinational with a reputation to protect and plenty of people wanting to see it come to grief in a courtroom. If you were some two-bit outfit nobody’s ever heard of then you’ve probably got more room to manoeuvre, but giant corporations have to watch their step.

In my earlier post, I quoted this part of the company code of conduct:

By virtue of international Human Rights standards (notably the Universal Declaration of Human Rights), every individual has the right to freedom of opinion and expression. The right to freedom of opinion guarantees that no one should be harassed due to their opinions. All individuals also have the right to freedom of expression, which includes the freedom to seek, receive and disseminate any kind of information, provided that the privacy and reputation of third parties and the company are respected.

This is important, as it means it’s not a question of management deciding on some vague measure that an employee has brought the company into disrepute and therefore must be disciplined. Instead, the employee can claim he acted within the company code of conduct and it’s up to the employer to demonstrate that he did so in a way so egregious that his rights are forgone in this instance. That’s not something I’d want to convince a tribunal of in the case of an employee’s Twitter comment which incited a mob to bombard the HR department with demands he be sacked.

This is really the basis of Israel Folau’s lawsuit against his former employers. If the code of conduct specifically allows people to practice their religion, how can he then be fired for effectively doing just that? I expect over the course of the next few years we’ll see a series of court cases which determine the degree to which corporations can sanction employees for expressing opinions in a private capacity which the management find inconvenient. Note that this wasn’t really a problem until Twitter came along and allowed SJW mobs to form. My guess is we’ll see a few silly rulings by progressive judges before higher courts containing more sensible judges point to commitments to human rights and freedom of expression in corporations’ documents and tell them they’d better start living up to them. The James Damore lawsuit will be worth watching.

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13 thoughts on “HR Case II Answers

  1. It’s probably worth keeping in mind that it isn’t the “James Damore lawsuit” any more. He’s withdrawn from the suit ands he’s in arbitration. There are a couple of other plaintiffs who have joined a class action suit but the specifics of Damore’s firing are no longer relevant.

    My guess is we’ll see a few silly rulings by progressive judges before higher courts containing more sensible judges point to commitments to human rights and freedom

    No they won’t. Courts in the US have repeatedly ruled that the President doesn’t have the powers of his office clearly enumerated by the Constitution because #orangemanbad.

    Like it or not, there’s a massive “four legs good, two legs bad” culture war going on and we’re not far from the first actual, literal shots being fired. It’s too late to work within the system because the system has been hopelessly compromised.

  2. I think you forgot

    2a. Draw the employee’s attention away from the disconnect between 1. and 2.

    “My guess is we’ll see a few silly rulings by progressive judges before higher courts containing more sensible judges point to commitments to human rights and freedom of expression in corporations’ documents and tell them they’d better start living up to them.”

    The sad thing is – in a few years the higher courts will be filling up with the progressive judges as the more sensible ones retire out.

  3. Also, this is another example of how poorly people understand the concept of rights these days. You may have a “right” to freedom of expression, but you don’t have a right to a job. A company that doesn’t want to deal with the hassle of an employee stirring up politics in a foreign country in a manner that has the potential to make the company’s operations difficult has every right to say “bad fit” and reassign that employee or hand them the legally mandated severance. Freedom of association is also a civil right.

  4. I still stand by my “Ignore” post yesterday. If complaints, tell them “He works for us, but we don’t own him”

    Stand up to bullies, don’t roll over.

    Unlike Conservative MPs who do surrender to threats:

    On abortion, most women agree with Jeremy Hunt

    …In saying that he would prefer a 12-week time limit, Hunt is in line with the law in most European countries. Nations with a limit between 11-14 weeks include France, Ireland, Portugal, Austria, Belgium, Greece, Italy and Spain, while Sweden has an 18-week limit, six weeks lower than the 24-week limit in the UK.

    And what does the UK general population think? Public opinion is behind a reduction, with women generally favouring lower limits than men. When asked by ComRes in 2017, 70 per cent of UK women said that they want a time limit of 20 weeks or below, with 59 per cent preferring a limit of 16 weeks or below.

    So, what about the reforms that Rudd and others are pushing for that would raise the time limit to a minimum of 28 weeks (and possibly up to birth)? When polled, only 2 per cent of women would like the time limit extended beyond the current 24 weeks…

    Once again politicians caving to violent lefties and not representing the electorate.

  5. “Also, this is another example of how poorly people understand the concept of rights these days. You may have a “right” to freedom of expression, but you don’t have a right to a job.”

    I’m a little late to this one, but what you have said above is the main point in spades. I have always been of the view that if you no longer add value to a company, in their opinion, then its the companies right to let you go and you are free to go an add value to another company. End of story.

    Lets face it, if an employee brings actual, perceived or potential harm to any of the stated or unstated objectives of a firm, then they no longer have a productive part to play in it. Its a company not a democracy and shareholders have put their capital at risk to make a return on it and increase its value in the majority of cases.

    This movement towards more and more employee rights and putting all of the employment risk on employers, has to be the biggest hamper to employment levels, employee development, business performance and the overall economic and social performance of any given jurisdiction that the company operates in.

  6. @Bardon and @Daniel Ream,

    It seems to me you’re both projecting a lot of assumptions on a situation that haven’t been described.

    Firstly, context is the most important missing information here; which country are we talking about that the ex-pat is getting all political in? Saudi Arabia would be very different to the USA, obviously.

    Secondly, what is a “civil right” in this situation and which specific ones doesn’t he have in this yet to be named country? Do we mean “voting rights”? Civil rights might include freedom of speech or might not depending on where we are.

    Thirdly, nobody has complained. Are we upset that, potentially in the future, he may express an opinion that might upset someone, somewhere in the world? Good luck hoping HR can fix that.

    Back to my original comment; do a risk assessment with someone in the room who knows the country and its precedents and then decide what to do.

    If political comments by ex-pats were an HR issue, Jürgen Maier of Siemens would have been told to pack up and head home after his anti-Brexit rantings. But then, Britain isn’t Saudi Arabia….. Oh, context.

  7. Yes, what exactly does ‘has no civil rights in the host country’ mean? Does it mean ‘is not a citizen’? In most countries even non-citizens are given certain rights, such as the right to not be arbitrarily detained without some kind of charge or trial.

    If the employee is in a country where they don’t have such basic rights… why the hell are they there? I wouldn’t live in a country where the police could just knock on the door in the middle of the night and whisk me away on a whim without any justification. I understand some people don’t have a choice, and some people have important work to do (such as spying) which means they must live in such countries. But if you do have a choice and you’re not doing vital patriotic work… is there any amount of money which could justify such a risk?

  8. “This is really the basis of Israel Folau’s lawsuit against his former employers. If the code of conduct specifically allows people to practice their religion, how can he then be fired for effectively doing just that?”

    The short answer to your question is because John West QC, Kate Eastman SC and John Boultbee, being in possession of the facts and in accordance with industrial law believe that they can.

    https://7thfloor.com.au/barrister/john-west-qc/

    I am now back in oz and am just getting up to speed on this interesting case which on face value has no precedence at law. Its not like they told him not to wear a Christain cross necklace.

    Let’s not forget that there is a process that needs to be followed here and Folau legally cannot commence a lawsuit against his employer at this early stage of the process. Next up, is a private hearing where the commissioner will determine whether he thinks a resolution can be reached, if not, he can dismiss it (unlikely) or certify that the dispute cannot be amicably resolved, Floau can also pull out at any stage. Then the parties may agree to an arbitration process, where the arbitrator’s findings are binding on both parties, if not arbitration then an application for a court hearing is made.

    It appears that both parties are entrenched (which is normal), and in the absence of an acceptable settlement offer being made, submitting to arbitration is unlikely, then it will go through the court trial system. This process will continue through to a judge’s finding, which can be appealed, if not amicably settled outside of the court by the parties.

    For mine and barring no smoking gun. I think it will proceed and be escalated through the system and that an out of court settlement would be the best and most likely outcome at this stage. Both parties will no doubt now be waiting to see the voracity of the application and the defence before they decide what kind of settlement offer would resolve it.

    Having read what the employer has said about their previous engagements with the employee on this subject were, and on the assumption that is what took place, then this will strongly support their case.

    So it looks like both parties lawyers are on a winner here, the sinful sodomites may well have a good case and Falou will only take advice from Him, himself and I doubt that He will tell him to settle on the court steps.

    The employers insurers will no doubt have been advised of the potential for an insurance payout to the employee on this one as well.

  9. “3. Draw the employee’s attention to the fact that he may be perceived from outside as a company spokesman.”

    What would the HR position have been if the critical articles had specifically mentioned that “author Joe Blow is a [foreigner] working in [this country] for Megacorp International as a [procurement executive]” ?

    What if the by-line had also included the statement: “The views presented by author Joe Blow are his own and do not represent the views of Megacorp International” ?

    Seems like the appropriate company response depends on a number of factors not mentioned in the case. Of course, in an academic case study, that could be entirely deliberate!

  10. Even opposition politicians have friends in the wider administration whom they will call on in a situation like this. A perfectly likely outcome would be for the blogger simply to have his visa withdrawn for an unspecified reason and required to leave the country.

  11. Folau won’t settle. It’s not about money for him. He’s not exactly poor.

    Aussie Rugby won’t settle, because they need Qantas. They are poor. Broke, actually.

    It’ll be up to a judge.

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